Delhi High Court
Dtc vs Delhi Administration Etc. on 15 January, 2016
Author: Hima Kohli
Bench: Hima Kohli
$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 280/1991
DTC ..... Petitioner
Through: Mr. Manish Garg, Advocate with
Mr. Akshay Bhardwaj, Advocate
versus
DELHI ADMINISTRATION ETC. ..... Respondents
Through: Mr. S.C. Singhal, Advocate with
Mr. M.K. Dhingra and Mr. Pradeep Verma,
Advocates for R-3.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 15.01.2016 REVIEW PET. 226/2008 (by the petitioner/DTC against the judgment dated 25.04.2007) and CM APPL. 138959/2009 (for condonation of delay)
1. The present petition plays out a modern day version of the Biblical story of "David and Goliath", where the petitioner/DTC, a Public Sector Undertaking has played to the hilt, the role of the giant, Goliath, a nine foot soldier from Gath, who had vainly boasted that he could beat any individual soldier in the Israelite army and the respondent No.3, who was employed as a Conductor with the petitioner/DTC, is the contextual David, the shepherd boy, who has been valiantly facing the wrath of a W.P.(C) 280/1991 Page 1 of 14 leviathan in the shape of the petitioner/DTC, for the past over four decades, on an allegation that he had misappropriated 10 paise from a passenger without issuing her a ticket for an actual fare of 15 paise.
2. The Review Petitionist/DTC has filed the present Review Petition seeking review of the judgment dated 25.04.2007, dismissing the writ petition directed against the Award dated 26.02.1990, passed by the Presiding Officer, Labour Court. Accompanying the present petition is an application under Section 5 of the Limitation Act, praying inter alia for condonation of delay of 350 days in filing the Review Petition.
3. A glance at the facts of the case is necessary. The case dates back to August, 1973 when the respondent No.3/Workman was in the employment of the petitioner/Corporation as a Conductor and was challaned by the Checking Staff of the Corporation on the allegation that he had collected 10 paise from a lady passenger against the actual fare of 15 paise and that he had pocketed the said amount by not issuing a ticket to her. A domestic enquiry was conducted against the respondent No.3 and he was dismissed from service on 15.07.1976. Aggrieved by the dismissal order, the respondent No.3 had raised an industrial dispute and the matter was referred to the Labour Court vide reference dated 18.07.1982. The Labour Court had passed the impugned Award dated W.P.(C) 280/1991 Page 2 of 14 26.02.1990, holding inter alia that the enquiry conducted by the petitioner/DTC was illegal and unjustified and the respondent No.3/Workman was directed to be reinstated with full back wages.
4. Another offshoot of the litigation between the petitioner/DTC and the respondent No.3 arose out of an application filed by DTC under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short „the Act') for seeking approval of the respondent No.3‟s dismissal. It is an undisputed position that vide order dated 06.07.1982, the Industrial Tribunal had allowed the said application. Aggrieved by the approval granted by the Industrial Tribunal, the respondent No.3 had filed a writ petition in the High Court, registered as W.P.(C) 3967/1982 that was dismissed vide order dated 24.02.1983. The respondent No.3 did not challenge the said order that resultantly attained finality.
5. At the time of filing the present petition in the year 1991, the petitioner/Corporation had raised several grounds to lay a challenge to the impugned Award dated 26.02.1990 passed by the Labour Court. However, in the course of arguments addressed before this Court, learned counsel for the petitioner/DTC had elected to confine the relief in the petition to the legal issue as to whether the approval accorded to the act of the petitioner/DTC in the proceedings arising under Section W.P.(C) 280/1991 Page 3 of 14 33(2)(b) of the Act, would act as res judicata in a subsequent reference of the same dispute to another Tribunal/Labour Court for adjudication under Section 10 of the Act.
6. The aforesaid position is borne out from a perusal of para 9 of the judgment dated 25.04.2007, wherein it was noted that the respondent No.3 had filed an application under Section 17B of the Act for payment of the amounts due and payable to him upto the date of making of the Award and for future salary, which was allowed vide order dated 19.11.1991. Aggrieved by the said interim order, the petitioner/DTC had filed LPA No.3/1992 that was disposed of by the Division Bench by passing a consent order dated 11.02.1992, whereunder the reinstatement of the respondent No.3/Workman was stayed subject to payment of the amount equal to the wages last drawn by him, in terms of Section 17(B) of the Act and the entire back wages were directed to be released to him subject to his furnishing security for half of the said amount. Pursuant to the said order, the petitioner/DTC had paid a sum of Rs.2,09,744/- to the respondent No.3 towards back wages for the period from July, 1976 to July, 1990 and thereafter, it had continued paying salaries to him on a month to month basis, till he had attained the age of superannuation on 30.9.2002, which was during the pendency of the W.P.(C) 280/1991 Page 4 of 14 petition.
7. It was in this background that at the time of addressing arguments, learned counsel for the petitioner/DTC did not press the issue raised with regard to back wages and sought to confine his arguments to the fall out of the order passed under Section 33(2)(b) of the Act, pending adjudication under Section 10 of the Act. In view of the statement made by the previous counsel appearing on behalf of the petitioner/DTC, arguments in the petition were confined to the question of res judicata. Vide judgment dated 25.04.2007, it was held that the scope of the proceedings under Section 33(2)(b) of the Act were different from the scope of the proceedings under Section 10 of the Act and the findings returned under Section 33(2)(b) of the Act could not act as bar to a reference under Section 10 of the Act, as the latter would have to be decided on its own merits. With these findings, the writ petition filed by the petitioner/DTC was dismissed.
8. Aggrieved by the aforesaid decision, the petitioner/DTC had filed an intra-court appeal, registered as LPA No.89/2007, alongwith an application for condonation of delay of 149 days. A perusal of the order dated 28.02.2008 passed by the Division Bench in the said appeal reveals that after addressing arguments for some time, learned counsel W.P.(C) 280/1991 Page 5 of 14 for the appellant/DTC had sought permission to withdraw the said appeal with liberty to file a review application, which was so granted and the appeal was dismissed as withdrawn.
9. The present Review Petition came to be filed by the petitioner/DTC on 28.03.2008. It is accompanied by an application for condonation of delay (CM APPL.138959/2009). The explanation offered for condonation of delay in filing the Review Petition beyond the prescribed period of 30 days from the date of passing the judgment dated 25.04.2007 is that though the certified copy of the judgment was applied for on the same date and it was lying ready at the filing counter on 10.05.2007, the same was collected by the counsel for the petitioner/DTC on 15.06.2007, i.e., during the summer vacations and the Department had taken some time in examining the financial implications of the said judgment and the viability of filing an appeal, which ultimately came to be filed on 26.11.2007 and was withdrawn on 28.02.2008.
10. Having regard to the approach ordinarily adopted by the courts in matters where the State/Public Authority is a litigant, and a strict standard for assessing the delay is not adopted as it may lead to grave miscarriage of justice and further, keeping in mind that the approach of the Court in such cases should be pragmatic and not pedantic , this Court W.P.(C) 280/1991 Page 6 of 14 does not propose to non-suit the Review Petitionist/DTC on the ground of delay. Resultantly, CM APPL. 138959/2009 is allowed and the delay of 350 days in filing the Review Petition is condoned.
11. Coming to the pleas taken in the Review Petition, the only ground urged by learned counsel for the petitioner is that while passing the judgment dated 25.04.2007, this Court did not adjudicate upon all the issues raised by the petitioner/DTC and instead, it had chosen to confine itself to Ground (B) raised in the writ petition, which refers to the doctrine of res judicata and its application in the context of the order dated 06.07.1982, passed by the Industrial Tribunal and the plea taken by the petitioner/DTC that it ought to have been taken as conclusive by the Labour Court. Mr. Manish Garg, learned counsel for the petitioner/DTC submits that the other grievances raised in the petition had remained unaddressed including the grievance with regard to grant of full/back/no back wages to the respondent no.3, which ought to have been adjudicated upon on merits.
12. Mr. S.C. Singhal, learned counsel for the respondent No.3 vehemently opposes the Review Petition and submits that in the course of arguments addressed in the petition, the petitioner/DTC‟s previous counsel, Mr.Alok Shankar had himself elected to confine the scope of the W.P.(C) 280/1991 Page 7 of 14 said petition to Ground (B) and in view of the said undisputed position, it is not permissible for the Review Petitionist to seek permission to argue the other grounds taken in the writ petition. He states that in any case, the review application is not maintainable as learned counsel for the petitioner has not been able to point out any error apparent on the face of the record or any material irregularity in the judgment dated 25.04.2007, that requires to be reviewed by this Court.
13. Learned counsel for the respondent No.3 submits that once the back wages of the workman were released by the petitioner/DTC, then the question of addressing arguments on his entitlement to back wages could not be a subject matter of adjudication by the Court and similarly, the monthly salary was also being paid by the petitioner/DTC to the respondent No.3, who had volunteered to re-join the services but the DTC had declined to assign him any duty. He clarifies that had the respondent No.3 re-joined the services of the petitioner/DTC, he would have superannuated in due course on 30.09.2002.
14. The Court is inclined to concur with the submissions made by the counsel for the respondent No.3 that the petitioner/DTC‟s counsel having elected to confine the relief in the writ petition to the effect of an order passed under Section 33(2)(b) of the Act and the application of the W.P.(C) 280/1991 Page 8 of 14 principles of res judicata for the purposes of adjudicating the dispute raised under Section 10 of the Act, the petitioner cannot be permitted to urge at this belated stage that this Court ought to have adjudicated upon all the other pleas taken in the writ petition. In any event, such an argument does not hold good when it comes to the scope of a Review Petition, which is fairly limited and is confined to pointing out any mistake/material error on the face of the record or in case of there existing any such irregularity, neither of which has been pointed out by learned counsel for the petitioner.
15. It is trite that the scope of review jurisdiction is very limited. The power of review may be exercised when there is some mistake or error apparent on the face of the record or in case of discovery of new and important matters of evidence which, even after exercise of due diligence, was not within the knowledge of the person seeking review at the time when the initial order was made. But on a ground that the decision was erroneous on merits or that all the pleas taken by the petitioner were not considered, exercise of the power of review is impermissible. Power of review is not an appellate power nor is it a power to substitute a view taken in a previous order or add to it. The possibility W.P.(C) 280/1991 Page 9 of 14 of two views on the subject is also not a ground for review. Reference in this regard may be made to the following judgments:
(i) Thungabhadra Industries Ltd. v. Govt. of A.P. [1964] 5 SCR 174 (ii) Aribam Tuleshwar Sharma v. Aibam Pishak Sharma (1979) 4SCC 389. (iii) Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455. (iv) Persion Devi and Ors. v. Sumitri Devi (1997) 8SCC 715. (v) Lily Thomas v. Union of India AIR 2000 SC 1650. (vi) Rajendra Kumar v. Rambai AIR 2003 SC 2095. (vii) Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. AIR 2005 SC 592.
(viii) Inderchand Jain (D) through L.Rs. v. Motilal (D) through L.Rs.
(2009) 14 SCC 663.
16. In view of the above facts and circumstances, the Review Petition is dismissed as not maintainable. Before drawing the curtains on this application, and hopefully, on this litigation, this Court is compelled to take note the manner in which the petitioner/DTC has conducted itself in the present case, the seeds whereof were sown over four decades ago, in the year 1973, when a labour dispute had taken place between the W.P.(C) 280/1991 Page 10 of 14 petitioner/DTC and the respondent No.3/workman over his allegedly pocketing 10 paise without issuing a ticket to a passenger travelling in a DTC Bus.
17. The petitioner/DTC had lost the case before the Labour Court in the year 1990 and in terms of the Award, it ought to have reinstated the respondent No.3 with full back wages. The petitioner had then filed a writ petition in the year 1991, challenging the said Award. The said petition had remained pending till the year 2007. Even if the respondent No.3 would have been reinstated by the petitioner/DTC in this duration, he would have superannuated during the pendency of the writ petition, on 30.09.2002. Aggrieved by the judgment dated 25.04.2007, the petitioner/DTC had filed an appeal, which was permitted to be withdrawn vide order dated 28.02.2008 passed in LPA No.89/2007.
18. In March, 2008, the petitioner/DTC had filed the present review petition which was listed for hearing on 04.07.2008. On account of the repeated requests for adjournment made on behalf of the petitioner/DTC, the review application could not be taken up for hearing till 29.07.2009, on which date, notice was finally issued to the respondent No.3. After the pleadings were completed in the Review Petition and the condonation of delay application, on 07.05.2010, in the course of arguments, learned W.P.(C) 280/1991 Page 11 of 14 counsel for the petitioner/DTC had sought an adjournment to file a brief synopsis of the relevant dates and events, which was filed on 05.08.2010. However, arguments were not addressed till 22.08.2014, on account of change of panel lawyers of the petitioner/DTC and repeated adjournments sought by both sides.
19. On 22.08.2014, taking note of the list of dates and events filed by the counsel for the petitioner/DTC, it was deemed appropriate to direct the DTC to file an affidavit indicating inter alia the quantum of dues payable to the respondent No.3 on account of salary, gratuity, pension, pay fixation etc., the amounts disbursed so far and the reasons for non- release of the balance amount.
20. The said affidavit of compliance filed by the present counsel for the petitioner/DTC on 29.10.2014, reveals that as on date, DTC has withheld an amount of Rs.1,28,293/- payable to the respondent No.3 towards gratuity and a sum of Rs.1,37,167/- towards CPF (Employees Contribution), totalling to a sum of Rs.2,65,460/- and it has incurred an expenditure of Rs.47,795/- on the present litigation. The explanation offered for non-release of the amounts payable to the respondent No.3 under the judgment is that the case has remained sub-judice before this Court and had the payment been made to the respondent No.3, it would W.P.(C) 280/1991 Page 12 of 14 not have been possible to recover the same from him.
21. Having regard to the fact that no interim order was operating in favour of the petitioner/DTC after the judgment was pronounced on 25.04.2007, there is no justification whatsoever for it to have withheld the gratuity and Provident Fund dues payable to the respondent No.3, which amounts are even otherwise, protected under the Statute and cannot be attached under any legal proceedings. This makes the position worse for the petitioner/DTC. Here is a case, where the respondent No.3/Workman has been fighting a prolonged battle with the petitioner/DTC spanning over 40 years and after having won the case before the Labour Court and the High Court, he has not been able to reap the fruits. It is ironical that the respondent no. 3 has by now reached the ripe old age 73 years in a litigation that had commenced in the year 1973, when he was all of 31 years.
22. Had the petitioner/DTC reinstated the respondent No.3 in terms of the Award dated 26.02.1990, passed by the Labour Court, he would have in any case superannuated on 30.09.2002, on which date, at least his gratuity and Provident Fund would have been released. However, the respondent No.3 has been made to run from pillar to post for release of his rightful dues, all because a highly belated review petition came to be W.P.(C) 280/1991 Page 13 of 14 filed by the petitioner/DTC after taking its chances in appeal, particularly when it had never approached this court or the Division Bench asking for stay of the operation of the judgment dated 25.4.2007.
23. In the aforesaid facts and circumstances, invoking the inherent powers vested in the Court under Article 226 of the Constitution of India, the petitioner/DTC is directed to release the gratuity and Provident Fund payable to the respondent No.3 within four weeks. The said amount shall carry interest @8.5 % per annum from the date the same became due and payable to the respondent No.3/workman, if paid within four weeks. However, if the amount is not released within the period stipulated above, then the interest payable shall stand enhanced from 8.5% to 12.5%. The Review Petition is dismissed with costs of Rs.30,000/- imposed on the petitioner/DTC to be paid to the respondent No.3, within four weeks.
HIMA KOHLI, J JANUARY 15, 2016 rkb/ap W.P.(C) 280/1991 Page 14 of 14